Another Johnson case leads to 3 opinions

This time it's United States v. Vail-Baron. Judge Rosenbaum writes the majority. Judge Jordan concurred. And visiting judge Eugene Siler (from the 6th) dissents. Judge Rosenbaum starts off her opinion this way:

When I was growing up, my parents told me not to judge a book by its cover. The Supreme Court has expressed an analogous concern about concluding that a crime qualifies as a violent crime under the Armed Career Criminal Act (“ACCA”), based solely on the name of the crime. See Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 2560 (2015) (discussing whether Connecticut’s offense of “rioting at a correctional institution,” a crime that the Supreme Court characterized as “certainly sound[ing] like a violent felony,” qualifies as a violent felony under the residual clause of the ACCA).1
This case raises the question of whether the Florida crime of felony battery—a crime that, from its name, may sound like a crime of violence—actually satisfies the definition of “crime of violence” under §2L1.2 of the Sentencing Guidelines when it is committed by mere touching. Heeding the Supreme Court’s warning, we have carefully compared the elements of felony battery under Florida law to the “elements clause” of § 2L1.2’s definition of “crime of violence.” Based on our review, we now hold that felony battery under Fla. Stat. § 784.041 does not qualify as a “crime of violence” under § 2L1.2 when it is committed by mere touching. For this reason, we vacate Vail-Bailon’s sentence and remand for resentencing.

"A very against police judge."

That was The Donald last night during the debate when discussing stop & frisk:



We didn't get any questions on the Supreme Court though...

Instead we got quite a bit of sniffles. I would have felt bad for him had he not been attacking Hillary's health for the past 3 weeks:



OK, OK... enough of that. The highlight of the night was Dee Gordon. I could watch this over and over again:

Will tonight's debate feature UFOs?

What was that percentage?!?!

I like this moment when Bill defends Hillary.




Should be fun tonight.

Justice Federico Moreno?

Former Chief Judge of the SDFLA, Federico Moreno, has made Donald Trump's short-list for Supreme Court Justices.  I love it.  Judge Moreno, who has been a district judge since 1990, would make a fantastic Justice.  He's smart, witty, engaging, and an all around good guy. 

He would be the first Supreme Court Justice to be a:

• Floridian
• Venezuelan
• former practicing criminal defense lawyer
• former assistant federal defender
• UM law grad

He's also been a state court judge and a practicing lawyer.  He currently serves on the Executive Committee of the Courts. 

 Other notables on the list include Charles Canady, a current Florida Supreme Court Justice.

Is flight from the police = reasonable suspicion or consciousness of guilt?

Many courts have said yes over the years. See Illinois v. Wardlow, 528 U.S. 119 (2000).


But the Supreme Court of Massachusetts has rightfully come out the other way in light of recent encounters between black men and the police:

Second, as set out by one of the dissenting Justices in the
Appeals court opinion, where the suspect is a black male stopped
by the police on the streets of Boston, the analysis of flight
as a factor in the reasonable suspicion calculus cannot be
divorced from the findings in a recent Boston Police Department
(department) report documenting a pattern of racial profiling of
black males in the city of Boston. Warren, 87 Mass. App. Ct. at
495 n.18 (Agnes. J., dissenting), citing Boston Police
Commissioner Announces Field Interrogation and Observation (FIO)
Study Results, http://bpdnews.com/news/2014/10/8/boston-policecommissioner-
announces-field-interrogation-and-observation-fiostudy-
results [https://perma.cc/H9RJ-RHNB].13 According to the
study, based on FIO data collected by the department,14 black men
in the city of Boston were more likely to be targeted for
police-civilian encounters such as stops, frisks, searches,
observations, and interrogations.15 Black men were also
disproportionally targeted for repeat police encounters.16 We do
not eliminate flight as a factor in the reasonable suspicion
analysis whenever a black male is the subject of an
investigatory stop. However, in such circumstances, flight is
not necessarily probative of a suspect's state of mind or
consciousness of guilt. Rather, the finding that black males in
Boston are disproportionately and repeatedly targeted for FIO
encounters suggests a reason for flight totally unrelated to
consciousness of guilt. Such an individual, when approached by
the police, might just as easily be motivated by the desire to
avoid the recurring indignity of being racially profiled as by
the desire to hide criminal activity. Given this reality for
black males in the city of Boston, a judge should, in
appropriate cases, consider the report's findings in weighing
flight as a factor in the reasonable suspicion calculus.
Here, we conclude that the police had far too little
information to support an individualized suspicion that the
defendant had committed the breaking and entering. As noted,
the police were handicapped from the start with only a vague
description of the perpetrators. Until the point when Carr
seized the defendant, the investigation failed to transform the
defendant from a random black male in dark clothing traveling
the streets of Roxbury on a cold December night into a suspect
in the crime of breaking and entering. Viewing the relevant
factors in totality, we cannot say that the whole is greater
than the sum of its parts.